Whose dispute is it anyway?

I talk a lot with my fellow mediators. We share experiences, good and bad. Give each other tips, de-brief one another and generally trade war stories. So I know that it is not uncommon for mediators to have to deal with an aggressive party or representative

I talk a lot with my fellow mediators. We share experiences, good and bad. Give each other tips, de-brief one another and generally trade war stories. So I know that it is not uncommon for mediators to have to deal with an aggressive party or representative.

I have had my fair share of aggressive parties over the years but to be fair I can only think of two mediations over the last ten years that have bordered on being out of control.

The first occasion involved a mediation where one of the parties was a husband and wife team suing three professional building consultants (Architect, Engineer and Surveyor). The consultants turned up to the mediation with very competent lawyers (on instructions from insurers) and worked together to try and undermine the husband and wife team’s claim. The husband reacted very badly to this tactic and became extremely aggressive both with the opposing teams and with myself as the mediator. I came very close to getting a fat lip on that occasion!

On another occasion involving a multi-party mediation, one of the parties arrived with Counsel and before I had even shaken hands with the barrister concerned was shouting at me telling me how stupid the claim was, what a waste of time the mediation was and, by inference, so was I. Not a great start.

So what are appropriate tactics for dealing with an aggressive party and/or representatives in a mediation?

The first tactic has to be to remain calm. Matching, that is confronting aggression with aggression, is not going to achieve anything. No matter how tempted you might be to shout back, all you will do is raise the temperature and most probably destroy your credibility as being impartial before you even start.

The second thing you need to do, and quickly, is to ask yourself why? Why is it that a party or his representative is behaving in a particular way? Is the show of emotion genuine? Is the representative playing a pre-determined role? Does he or she have an interest in the outcome of the mediation? Why, why, why?

Thirdly, don’t be tempted to ignore an outburst of aggression. The person demonstrating aggression is trying to communicate with you. It may be on a primeval level and in a way that may make you feel uncomfortable but it is still communication. He or she is at the mediation and behaving in a particular way for a reason.

Resisting the urge to ignore an outburst and allowing the party concerned to “get things off his or her chest”, or venting as mediators refer to it, can often mark the change in the phase of a mediation. Sometimes people need to have their say before they can even think about negotiating a solution. The very act of talking (and yes that may mean raised voices) through difficult emotions can help diffuse a hostile party.

Now begin to help the party legitimise their position by demonstrating empathy. For example, you might think about saying something on the lines of “Can you help me by explaining the background to this?” or maybe “I can see that you feel strongly about this?”.

Now begin to think about gently distracting the party’s aggression by encouraging them to channel their emotions into thinking about creative solutions for resolving the dispute.

By now you should have begun to lower the temperature and the move into the next phase of the mediation should begin to take place.

And for one final tip……. if all else fails, it is perfectly legitimate for a mediator to remind an aggressive party and/or representative that you are there to help but, at the end of the day, it is not your dispute. The party’s quarrel is not with you but, despite this obvious fact, you will do everything in your power to help resolve the dispute.

Peter Vinden is Managing Director of Vinden and an experienced Mediator. He can be contacted by email at pvinden@vinden.co.uk. For similar articles on mediation and dispute resolution generally, visit www.vinden.co.uk

Peter Vinden

Peter is an experienced professional in the construction industry with particular expertise in quantity surveying and the commercial management of contracting organisations.